Unitary patent

Unitary patent

The European Commission is active in the implementation of a patent package. When it comes into operation, it will establish a European patent with unitary effect (the ‘unitary patent’) and a new patent court. The unitary patent is a legal title that will provide uniform protection across 26 EU countries on a one-stop-shop basis, providing huge cost advantages and reducing administrative burdens. The package will also set up a Unified Patent Court that will offer a single, specialised patent jurisdiction.

The benefits of unitary patent protection for Europe

Unitary patent protection will make it possible for inventors (individuals, companies or institutions) to protect their invention in 26 EU countries by submitting a single patent application. After the patent is granted, there will be no need to validate it in each country.

Unitary patent protection will make the existing European system simpler and less expensive for inventors. It will end complex validation requirements and drastically limit expensive translation requirements in participating countries. Consequently, it is expected to stimulate research, development and investment in innovation, helping to boost growth in the EU.

Unitary patent protection will also protect inventions better than the current system. Due to the prohibitive costs involved in the national validation of European patents, many inventors currently only patent their inventions in a handful of countries. This makes inventions less valuable as the lack of protection in other countries allows them to be copied more easily.

In 2012, EU countries and the European Parliament agreed on the ‘patent package’ – a legislative initiative consisting of two regulations and an international agreement that lay the ground for the creation of unitary patent protection in the EU.

The package consists of:

a Regulation creating a European patent with unitary effect ('unitary patent')

a Regulation establishing a language regime applicable to the unitary patent

an Agreement between EU countries to set up a single and specialised patent jurisdiction (the 'Unified Patent Court')

Following the adoption of the two Regulations in December 2012, the contracting countries, except for Poland but with the addition of Italy, proceeded with the signature of the Agreement on a Unified Patent Court. The process for the ratification of the agreement is ongoing. The unified jurisdiction will deal with disputes relating to classical European and unitary patents, for which it will have exclusive jurisdiction.

The package will come into effect when 13 countries have ratified the Unified Patent Court agreement.

Agreement by Member States on the unitary patent fees

After decades of negotiations on the unitary patent, on 24 June 2015 EU countries agreed on the level of renewal fees of the unitary patent. The renewal fees will be equal to the sum of national renewal fees in four countries (Germany, France, the United Kingdom and the Netherlands). This means that an inventor protecting their innovation with the unitary patent will pay less than €5,000 in renewal fees over 10 years for a territory that covers 26 EU countries, instead of the current level of around €30,000, which has proven to discourage companies from patenting in Europe.

The competitive price of renewal fees is a key element to ensure the attractiveness of the unitary patent to companies, especially start-ups. It will also reduce the gap between the cost of patent protection in Europe compared with the US, Japan and other third countries.

To hear the views of potential users of the unitary title, a workshop was organised in May 2015:

Unitary patent: 26 countries agree on distribution key

In November 2015, EU countries reached an important agreement on the financial distribution of the revenue of unitary patents. The agreement fixes the distribution key for an initial period of operation: 50% of fees will be retained by the EPO (European Patent Office) while the remainder (minus an administrative charge) will be distributed among the participating countries according to a formula that takes account of the GDP and the number of applications filed from that country. The distribution arrangements will be reviewed regularly. The distribution key will be subject to revision every five years.

Unitary patent and support to SMEs: the IPR SMEs package

In June 2015 Member States participating at the Select Committee on the Unitary Patent explicitly requested the Commission’s help to minimise the cost of patent protection for small and medium-sized enterprises (SMEs). The Commission’s Single Market Strategy also identifies the need to support SMEs when filing, using and enforcing intellectual property (IP) rights, especially patents.

Therefore the Commission is working on designing a set of measures to help SMEs requesting and managing unitary patents and other European IP rights. We will be working in the coming months on:

affordable European litigation fee insurance

a specialised mediation and arbitration service focusing on the needs of innovative SMEs

the use of structural funds for rewarding innovative SMEs using IP, and in particular patents

connecting SMEs with local IP experts in order to provide them with real and concrete guidance for their IP portfolio

The Commission will work together with the European Patent Office (EPO) and the Office for Harmonization in the Internal Market (OHIM), EU countries and the European Parliament to design those measures and implement them across the European Union.

Next steps

The Commission will continue to work with the participating countries to set up the Unified Patent Court (UPC), an essential element in making the unitary patent operational. The Commission is calling for a rapid agreement on technical issues. It also calls on all remaining participating EU countries to ratify the Unified Patent Court Agreement as soon as possible so that the Unitary Patent package comes into force by the end of 2016.

Official texts

Regulation (EU) No 1257/2012 of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of unitary patent protection

Council regulation (EU) No 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements